ALJDEC decisions subject to certification as final

20A-30780-MDX · Arizona Medical Board · 2020-07-30

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

In the Matter of:

Timothy C. Sapp, MD

Holder of License No. 30780

RESPONDENT.

No. 20A-30780-MDX

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: June 12, 2020 at 9:00 AM.

APPEARANCES: Assistant Attorney General Anne Froedge, Esq. appeared on behalf of the Arizona Medical Board (“Board”) with Dr. Bhushan S. Agharkar, M.D. and Rachel Shepherd as witnesses. No appearance(s) by or on behalf of Timothy C. Sapp, M.D. (“Respondent”). Amanda Harwell (Arizona CR No. 50967) served as the official court reporter for the above-captioned proceeding.

ADMINISTRATIVE LAW JUDGE: Jenna Clark.

_____________________________________________________________________

After review of the hearing record in this matter, the undersigned Administrative Law Judge makes the following Findings of Fact and Conclusions of Law, and issues this Recommended Decision to the Executive Director of the Board.

FINDINGS OF FACT

Background and Procedure

The Board is the authority for the regulation and control of the practice of allopathic medicine in the State of Arizona.

Respondent is the holder of License No. 30780 for the practice of allopathic medicine in Arizona. Pursuant to Ariz. Admin. Code R4-9-117, Administrative Notice is taken that Respondent was first issued his license to practice in Arizona on September 25, 2002. Respondent’s license is currently classified as Active with Restrictions.

On May 05, 2020, the Board referred this matter to the Office of Administrative Hearings (“OAH”), an independent state agency, for an evidentiary hearing on June 12, 2020. Per the Complaint and Notice of Hearing (“Complaint”) the issue to be determined is whether the Board has cause to discipline Respondent’s license, up to and including revocation, pursuant to Arizona Revised Statutes (“Ariz. Rev. Stat.”) § 32-1451, based on alleged violations of §§ 32-1401(27)(3) and 32-1401(27)(r).

On April 20, 2020, Respondent submitted a License Status Change Request Form to the Board whereby he attempted to cancel his license pursuant to Ariz. Rev. Stat. § 32-1433. The form, which notes in pertinent part, that the signatory affirmed by signing that (1) the license is not presently under investigation by the Board, and (2) the Board has not commenced any disciplinary proceedings against the license. On April 21, 2020, Respondent was notified that cancellation of his license was not possible because there were 3 open investigations pending against his license.

On April 22, 2020, the Board issued an Interim Finding of Fact, Conclusions of Law and Order for Summary Restriction of License against Respondent, which summarily restricted his license to practice allopathic medicine in the State of Arizona. Specifically, Respondent was prohibited from prescribing controlled substances pending the outcome of this matter.

Hearing Evidence

The Board called witnesses Dr. Bhushan S. Agharkar, M.D. and Rachel Shepherd to testify and submitted Exhibits 1-59 into the record. The Complaint and Notice of Hearing and May 29, 2020, Telephonic Order were also admitted into the record as their own exhibits. Although the Tribunal afforded Respondent a 15-minute grace period, there was no appearance by or on behalf of Respondent, or a Motion to Continue received by or on his behalf. The matter was heard in Respondent’s absence. The substantive facts of record are as follows:

Case MD-19-0184A

Case MD-19-0184A was opened by the Board on February 19, 2019, to investigate a complaint filed about prescriptions written by Respondent for Adderall (dextoampetamine – amphetamine), Klonopin (clonazepam), and Xanax (alprazolam) issued to 31 year old patient (“ER”) who presented to an emergency room on February 17, 2020, as “acutely psychotic” with “suicidal ideation.” The complaint noted several concerns, in pertinent parts, as follows:

Per Respondent’s website, he practiced “medication management” but was a cash only practice that did not accept health insurance;

Respondent’s prescription of 120mg of Adderall per day to ER was double the maximum recommended dose of 60mg per day;

Respondent’s prescription of “uppers” and “downers” such as Xanax and Klonopin, particularly in their high doses, is duplicative, and

Because of ER’s history of polysubstance abuse, Respondent’s prescription regimen for the patient is disconcerting.

On February 20, 2019, the Board issued a letter to Respondent to provide notice of the aforementioned complaint.

On March 19, 2019, the Board issued a letter to Respondent which stated, in pertinent part, that Respondent had until April 02, 2019, to provide a written narrative to the Board regarding his alleged violations of Ariz. Rev. Stat. §§ 32-1401.

On April 01, 2019, the Board received Respondent’s reply to the MD-19-0184A investigation letter. Respondent detailed, in pertinent parts, as follows:

On November 14, 2018, ER presented to Respondent’s practice for a psychiatric evaluation whereby he was diagnosed with Attention-Deficit Hyperactivity Disorder (“ADHD”) and generalized Anxiety Disorder.

Respondent prescribed ER 30mg Adderall (with no refills), 2mg Xanax (with 2 refills), and 2mg Klonopin (with 2 refills). Respondent instructed ER to return for follow-up care 4-6 weeks later, or earlier if needed.

ER last filled Respondent’s prescription for Xanax and Klonopin on January 13, 2019, and last filled Respondent’s prescription for Adderall on February 02, 2019.

ER did not return for a follow-up appointment with Respondent.

Respondent denied fulling a “pill mill” and argued that he only accepted cash payments as a means to work half days and have more time with his patients.

Respondent attached his evaluation of ER, patient information form, and copy of ER’s U.S. Department of Veterans Affairs identification card.

On June 19, 2019, after reviewing ER’s medical and prescription records, the Board issued a letter to Respondent which stated, in pertinent part, that Respondent had until July 03, 2019, to provide medical records and narratives for patients LB (36 year old male), TC (41 year old male), and ML (25 year old male).

On August 18, 2019, the Board received Respondent’s response whereby he provided the following information, in pertinent parts, about each patient requested by the Board:

On October 20, 2015, LB presented to Respondent’s practice for a psychiatric evaluation whereby she was diagnosed with generalized Anxiety Disorder, Panic Disorder, and ADHD. Respondent prescribed LB 2mg Xanax (with 2 refills), 30mg Adderall, 350mg Soma, 10mg Valium and 150mg Wellbutrin XL. Respondent instructed LB to return for follow-up care 6-8 weeks later, or earlier if needed. On September 28, 2018, Respondent terminated LB’s care, citing resistance to efforts to reduce LB’s prescriptions.

On October 07, 2013, TC presented to Respondent’s practice for a psychiatric evaluation whereby he was diagnosed with generalized Anxiety Disorder and prescribed 30mg Restoril (with 1 refill), 1mg Klonopin (with 1 refill), 400mg Neurontin, 2mg Xanax, 350mg Soma, 10mg Valium, and 100mg Lamictal (with 1 refill). Respondent instructed TC to return for follow-up care 4 weeks later, or earlier if needed. On July 26, 2019, Respondent terminated TC’s care, citing TC’s angry and argumentative behavior over his desire to receive high dosages of benzodiazepines.

On August 09, 2012, ML presented to Respondent’s practice for a psychiatric evaluation whereby he was diagnosed with generalized Anxiety Disorder and Panic Disorder. Respondent prescribed ML 30mg Adderall, 2mg Klonopin, 10mg Valium, and 2mg Xanax. Respondent instructed ML to return for follow-up care 2 weeks later, or earlier if needed.

During the course of its investigation the Board obtained medical and pharmacy records for patients ER, LB, TC, and ML, and forwarded them to its medical consultant (“Medical Consultant”) Dr. Bhushan S. Agharkar, MD for review.

On November 18, 2019, Medical Consultant submitted his Report and Summary to the Board whereby he opined that Respondent had deviated from the standard of care regarding prescriptions issued to patients ER, LB, TC, and ML without adequate clinical rationale. Medical Consultant also opined that there was potential harm to patients, especially to those at risk for misuse of controlled substances, dependence, and addiction.

On December 17, 2019, the Board issued a letter to Respondent which stated, in pertinent part, that Respondent had until December 31, 2019, to respond to the Board’s investigative report and Medical Consultant’s report.

On December 31, 2019, the Board received Respondent’s supplemental response whereby Respondent argued that ER’s emergency room visit had nothing to do with the medication Respondent had prescribed approximately 3 months prior to the incident. Respondent also argued that he had not behaved unreasonably in scheduling ER’s follow-up appointment.

On January 05, 2020, the Board received Medical Consultant’s Supplemental Report and Summary. Medical Consultant noted Respondent failed to provide an explanation for his high dosage prescriptions of the underlying patients. Medical Consultant also noted a lack of signed consent forms by the patients at issue, and noted that the standard of care required Respondent to inform his patients each time a new medication or treatment course was prescribed. Ultimately, Medical Consultant offered that is opinion(s) on the case remained unchanged after reviewing Respondent’s supplemental response to the Board.

On April 02, 2020, the Board’s Staff Investigational Review Committee (“SIRC”) convened to review a recommendation in Case MD-19-0184A. SIRC ultimately decided to recommend the issuance of a Letter of Reprimand to Respondent, place him on 5 year probation with a practice restriction by Interim Consent Agreement, and require Respondent to complete 25 continuing medical education hours in prescribing and record keeping.

Case MD-19-1135A

Case MD-19-1135A was opened by the Board on December 02, 2019, to investigate a complaint filed regarding Respondent’s alleged inappropriate discharge of patient WF. The complaint noted several concerns, in pertinent parts, as follows:

At the time the complaint was submitted, WF was being treated for addiction at an inpatient rehab facility, and

On October 17, 2019, WF received prescriptions written by Respondent for 1mg Alprazolam (with 2 refills) and D-Amphetamine.

On October 24, 2019, WF received prescriptions written by Respondent for 10mg Valium (with 1 refill).

On December 03, 2019, the Board issued a letter to Respondent to provide notice of the aforementioned complaint.

During the course of its investigation the Board obtained medical and pharmacy records for WF for review.

On December 20, 2019, the Board issued a letter to Respondent which stated, in pertinent part, that Respondent had until January 03, 2020, to provide a written narrative to the Board regarding his alleged violations of Ariz. Rev. Stat. §§ 32-1401

On January 28, 2020, the Board received Respondent’s response whereby he provided the following information, in pertinent parts, about WF’s care and treatment as requested by the Board:

On July 15, 2019, WF presented to Respondent’s practice for a psychiatric evaluation whereby he was diagnosed with ADHD, generalized Anxiety Disorder, and Bipolar Disorder. Respondent prescribed WF 30mg Adderall, 300mg Neurontin, and 2mg Xanax. Respondent instructed WF to return for follow-up care 6-8 weeks later, or earlier if needed.

On October 15, 2019, WF presented to Respondent’s practice for treatment. Respondent prescribed 10mg Dexedrine, 150mg Wellbutrin XL, 400mg Neurontin, 1mg Xanax, and 10mg Sonata. Respondent instructed WF to return for follow-up care 4 weeks later, or earlier if needed.

On December 05, 2019, WF’s mother phoned Respondent to report WF’s history of medication abuse. As a result, Respondent cancelled WF’s refills and made a note to discuss with WF at his next appointment.

Respondent noted that due to WF’s mother’s complaint, “I most likely will not be seeing this patient any longer” and that he would consider issuing a termination letter to WF.

On February 10, 2020, Medical Consultant submitted his Report and Summary to the Board whereby he opined that Respondent had deviated from the standard of care by prescribing high dose benzodiazepines and stimulants without adequate clinical rationale, and by prescribing a stimulant and antidepressant concurrently in a patient with Bipolar Disorder without a mood stabilizer. Medical Consultant also opined that there was potential harm to WF because he was at risk of a “manic switch” due to a lack of concurrently prescribed mood stabilizer.

On February 25, 2020, the Board issued a letter to Respondent which stated, in pertinent part, that Respondent had until March 10, 2020, to respond to the Board’s investigative report and Medical Consultant’s report.

On February 25, 2020, the Board received Respondent’s supplemental response whereby Respondent denied prescribing WF narcotics and argued that his notes for the patient were thorough and complete.

On February 20, 2020, the Board received Medical Consultant’s Supplemental Report and Summary. Medical Consultant noted that practitioners should adhere to the “if it isn’t documented, it didn’t happen” rule taught in medical school, and argued that because Respondent’s notes do not include any “rule out” diagnosis for WF, he must not have done any. Medical Consultant opined that “one does not treat psychiatric patients mechanistically and algorithmically but there has to be some method and explanation in the medical records as to why this particular course was taken,” and closed by noting Respondent had failed to do so in WF’s case.

On April 02, 2020, SIRC convened to review a recommendation in Case MD-19-1135A. SIRC ultimately decided to recommend the issuance of a Letter of Reprimand to Respondent, place him on 5 year probation with a practice restriction by Interim Consent Agreement, and require Respondent to complete 25 continuing medical education hours in prescribing and record keeping.

Case MD-19-1143A

Case MD-19-1143A was opened by the Board on December 05, 2019, after receiving a complaint regarding Respondent’s care and treatment of a patient, RP. Specifically, it was alleged that Respondent had inappropriately discharged RP as a patient on or about November 17, 2019. The complaint alleges, in pertinent parts, as follows:

In March 2017, RP presented to Respondent’s practice for a psychiatric evaluation whereby he was diagnosed with Major Depressive Disorder and generalized Anxiety.

Respondent had prescribed RP 4mg Clonazepam, 2mg Klonopin, 100mg Lamictal, 20mg Prozac, and 0.25mg Halcion, and Gabapentin.

Respondent issued RP a termination letter stating, “I am writing this letter to inform you that I will no longer be able to follow you as a patient in this clinic. Because of repeated unannounced missed appointments I am forced to termination you as a patient. This is stated in in the initial rules that are first presented when treatment begins. I am sorry.” [sic]

Respondent refused to issue RP a 30-day supply of medication while RP looked for a new provider.

On December 05, 2019, the Board issued a letter to Respondent to provide notice of the aforementioned complaint.

During the course of its investigation the Board obtained medical and pharmacy records for RP for review.

On December 20, 2019, the Board issued a letter to Respondent which stated, in pertinent part, that Respondent had until January 03, 2020, to provide a written narrative to the Board regarding his alleged violations of Ariz. Rev. Stat. §§ 32-1401

On February 03, 2020, the Board received Respondent’s response whereby he provided the following information, in pertinent parts, about RP’s care, treatment, and discharge as requested by the Board:

RP was “obviously” terminated due to a lack of compliance with suggested treatment and a great number of no shows for appointments.

RP filed a complaint against Respondent “just to be contentious” because his wife left him and moved out of state.

On February 14, 2020, Medical Consultant submitted his Report and Summary to the Board whereby he opined that Respondent had deviated from the standard of care by prescribing high dose benzodiazepines after RP missed several appointments. Notably, it is unclear from Respondent’s notes as to the underlying reason(s) for RP’s missed appointments. Medical Consultant opined that medications such as Lamictal have to be re-titrated when restarted with a patient, which was not done in RP’s case. Medical Consultant further opined Respondent was responsible for ensuring a safe and reasonable discharge plan for RP once he decide to terminate RP’s care. This included providing RP with the names and contact information of 3 alternative practitioners RP could contact for future treatment, providing at least a 30-day supply of medication, and informing RP that Respondent would make himself available for emergencies in the next 30 days. Medical Consultant also opined that there was actual and potential harm to RP because he suffered from withdrawals and could have experienced other non-life-threatening symptoms.

On February 28, 2020, the Board issued a letter to Respondent which stated, in pertinent part, that Respondent had until March 13, 2020, to respond to the Board’s investigative report and Medical Consultant’s report.

On March 13, 2020, the Board received Respondent’s supplemental response whereby Respondent alleged he terminated RP’s treatment after 6 months had passed since RP’s last appointment. Respondent also argued that the complaint was “unfounded,” as the treatment RP had been provided was appropriate because RP’s medications “had been adjusted to a point where they could be reduced.”

On March 18, 2020, the Board received Medical Consultant’s Supplemental Report and Summary. Medical Consultant noted that although RP’s last appointment with Respondent was on August 09, 2019, RP filled prescriptions written by Respondent on August 35, 2019, September 25, 2019, and October 23, 2019. Thus, it was more likely than not that RP did in fact experience withdrawals from the medication(s). Medical Consultant also noted that each of the prescriptions RP filled after his last appointment with Respondent, were all based on an evaluation performed by Respondent on May 08, 2019, which Medical Consultant opined to be “excessively high” amount in terms of dosage and quantity.

On April 02, 2020, SIRC convened to review a recommendation in Case MD-19-1143A. SIRC ultimately decided to recommend the issuance of a Letter of Reprimand to Respondent, place him on 5 year probation with a practice restriction by Interim Consent Agreement, and require Respondent to complete 25 continuing medical education hours in prescribing and record keeping.

Consent Agreement & Investigative Memo

On April 14, 2020, the Board issued Respondent an Interim Consent Agreement for Practice Restriction is Cases MD-19-0184A, MD-19-1135A, and MD-19-1143A. The Practice Restriction would prohibit Respondent from prescribing benzodiazepines or stimulants while his cases were pending review, and the Consent Agreement would require Respondent to obtain a proctor and transfer specific patients to other practitioners. Respondent was given until April 17, 2020, to provide the Board with his response.

On April 16, 2020, Respondent provided his reply to the Board whereby he declined to sign the Interim Consent Agreement for Practice Restriction, as he alleged that he did not have the resources required to meet the requested conditions, and could not afford to lose the bulk of his patients in a mandatory transfer. Respondent closed by proposing that he alternatively be permitted to continue working, and in turn promised to alter, decrease, and whenever possible discontinue prescribing controlled substances.

On April 20, 2020, an Investigation Memo was drafted regarding Cases MD-19-0184A, MD-19-1135A, and MD-19-1143A. The investigator concluded that an imminent danger to the public health and safety existed relating to Respondent’s prescribing of controlled substances. Relying on the findings and opinions of the Medical Consultant, the investigator noted that there was a lack of documentation due to inadequate medical recordkeeping to support the listed psychiatric diagnoses, and no discussion of potential side effects between medications or due to high dosages. Notably, Respondent knew, or should have known, that the Board expected him to comply with medical recordkeeping requirements and standards, because he had been issued an Advisory Letter on December 19, 2013, for inadequate medical records pursuant to Ariz. Rev. Stat. § 32-1401(2).

Closing Arguments

In closing the Board argued that Respondent had established a pattern of inappropriate behavior by prescribing dangerous controlled substances to vulnerable patients and failing to make adequate records to justify his treatments and high dosing for said patients. The Board further argued that while all patients faced potential harm, there were some patients who had suffered actual harm as result of Respondent’s conduct. The Board noted the ways and means it utilized to afford Respondent the ability to keep and maintain his license, but its efforts were moot because ultimately Respondent tried to cancel his license, which the Board perceived as Respondent’s unwillingness to submit to Board regulation.

CONCLUSION OF LAW

The Arizona Legislature created the Board to protect the public. The Board is the duly constituted authority for licensing and regulating the practice of allopathic medicine. Therefore, the Board has jurisdiction over Respondent and the subject matter in this case. This matter has been properly brought before OAH for adjudication.

The Notice of Hearing the Board mailed to Respondent’s address of record is sufficient, and Respondent is deemed to have received notice of the hearing in this matter. Because the Board mailed all correspondence to Respondent in the same manner and failed to receive any mail returned as undeliverable, Respondent is deemed to have received all correspondence regarding this matter from the Board as well.

The Board bears the burden of proof to establish cause to sanction Respondent’s license to practice allopathic medicine and factors in aggravation of the penalty by clear and convincing evidence. Respondent bears the burden to establish affirmative defenses and factors in mitigation of the penalty by the same evidentiary standard. The standard of proof is by clear and convincing evidence. Clear and convincing evidence is “[e]vidence indicating that the thing to be proved is highly probable or reasonably certain.”

Ariz. Rev. Stat. § 32-1451(D) provides that “[i]f the board finds, based on the information it receives under subsections A and B of this section, that the public health, safety or welfare imperatively requires emergency action, and incorporates a finding to that effect in its order, the board may restrict a license or order a summary suspension of a license pending proceedings for revocation or other action. If the board takes action pursuant to this subsection, it shall also serve the licensee with a written notice that states the charges and that the licensee is entitled to a formal hearing before the board or an administrative law judge within sixty days.”

Ariz. Rev. Stat. § 32-1451(M) provides that “[a]ny doctor of medicine who after a formal hearing is found by the board to be guilty of unprofessional conduct, to be mentally or physically unable safely to engage in the practice of medicine or to be medically incompetent is subject to censure, probation as provided in this section, suspension of license or revocation of license or any combination of these, including a stay of action, and for a period of time or permanently and under conditions as the board deems appropriate for the protection of the public health and safety and just in the circumstance. The board may charge the costs of formal hearings to the licensee who it finds to be in violation of this chapter.”

Ariz. Rev. Stat. § 32-1451(U) provides, for the purposes of determining the appropriate disciplinary action under this section, that “[t]he board shall consider all previous nondisciplinary and disciplinary actions against a licensee.”

Ariz. Rev. Stat. § 32-1401(27)(e) defines “unprofessional conduct” to include, “[f]ailing or refusing to maintain adequate records on a patient.”

Ariz. Rev. Stat. § 32-1401(27)(r) defines “unprofessional conduct” to include, “[c]omitting any conduct or practice that is or might be harmful or dangerous to the health of the patient or the public.”

The issue in the matter at bar is whether Respondent engaged in acts of unprofessional conduct, and if so, whether grounds exist for the Board to discipline Respondent’s license based on said conduct.

The material facts here are not in dispute.

Here, the Board established by clear and convincing evidence that Respondent’s medical records for patients ER, LB, TC, ML, WF, and RP do not support or justify prescriptions Respondent issued to said patients, in violation of Ariz. Rev. Stat. § 32-1401(27)(e).

The Board also established by clear and convincing evidence that Respondent deviated from the standard of care by writing prescriptions to patients without documenting adequate clinical rational; including documented informed consent obtained by Respondent, prescribing stimulants and antidepressants concurrently without also prescribing a mood stabilizer, failing to include “rule out” diagnoses in his evaluative reports, in violation of Ariz. Rev. Stat. § 32-1401(27)(r).

Therefore, the sole remaining issue to be addressed is whether Respondent has established one or more affirmative defenses or mitigating factors, and if so, whether those defenses or mitigating factors preclude the Board from disciplining Respondent’s license.

Respondent did not sustain his evidentiary burden in this matter. There is no independent evidence in the record to explain or otherwise justify Respondent’s prescribing methodologies or clinical rationale for treatment of the underlying patients at issue.

In order to deliver effective healthcare to patients, doctors must communicate effectively, accurately, and professionally with patients and other healthcare providers. It is clear from a review of the record that Respondent has not consistently met these rudimentary standards to practice medicine. Respondent’s conduct establishes that he cannot, and does not want to, be regulated at this time.

A license to practice medicine is a privilege, not a right. The Legislature has charged the Board with protecting the public and those who deal with its licensed practitioners. The Board has a legitimate interest in protecting the public. In light of the actual harm to patients ER and RP and the risk of potential harm to other patients resulting from Respondent’s unprofessional conduct, the Board established cause to impose a disciplinary sanction against Respondent’s license.

After closely scrutinizing the relevant and substantive evidence of record, the undersigned Administrative Law Judge concludes that the Board has sustained its burden of proof by clear and convincing evidence in this matter. The Tribunal finds that the Board’s allegations of unprofessional conduct pursuant to Ariz. Rev. Stat. §§ 32-1401(27)(e) and 32-1401(27)(r) against Respondent have been established. Thus, grounds exist for the Board to discipline Respondent’s license to practice allopathic medicine in the State of Arizona.

RECOMMENDED DECISION

Based on the foregoing,

IT IS RECOMMENDED that the Board’s Complaint for cases MD-19-0184A, MD-19-1135A, and MD-19-1143A be affirmed pursuant to Ariz. Rev. Stat. § 32-1451(D).

IT IS FURTHER RECOMMENDED that Respondent Timothy C. Sapp, MD’s License No. 30780 for the practice of allopathic medicine in the State of Arizona be revoked.

IT IS FURTHER RECOMMENDED that Respondent be assessed the cost of the formal hearing incurred by the Board in this matter consistent with Ariz. Rev. Stat. § 32-1451(M).

In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be five days from the date of that certification.

Done this day, July 30, 2020.

/s/ Jenna Clark

Administrative Law Judge

Transmitted electronically to:

Patricia E. McSorley, Executive Director

Arizona Medical Board